Intellectual property rights vs. journalism

June 10, 2010

Transcript

[ Music ]
>> With 15 minutes left, and I think it's time to broaden the conversation. David, can, can you fill [inaudible] -
>> David: Certainly. [crosstalk] I'd like to start with the question of my -
>> Oh, even better.
>> David: [Crosstalk] As to, we, we've spoken a lot about this case that Apple versus Gizmodo and, and who did it silly and what should they have done and so. So let's forget that case. Let's not talk about it for a second, and let's look at the question, OK, so we got the First Amendment. We've got intellectual property protection. We've had a trend of companies suing journalists in order, because they say that their intellectual property has been infringed or their, their secrets are being spread out, and so is this a fad, and it's going to go away and sort of the legal framework is OK, or is there a problem with the legal framework the way innovation and, and information technology is going now. So we see that this is going to get worse and that we might have to change the rules in the future. What do you think?
>> Do I get to answer? Because [laughs]. So there's no question in my mind. You know, patents and copyrights are enshrined in the Constitution as is, is the First Amendment. So, yes. They're all going to be happening, and it is going to be a continual process, and as law always evolves right, it's quite a bit different now than it was 200 years ago, but. So the answer to your question is yes, this will continue to be an issue, and yes, the value of the intellectual property is such that companies will be finding new and more creative ways and new laws to protect their intellectual property. Journalists are going to be, have their work cut out for them trying to counteract the needs for companies to [inaudible].
>> I have a glimmer of hope in this regard in, in a slightly different trend. The Second Circuit decision in the Salinger case, for those of you. J.D. Salinger was very protective of copyrights, in, including, of course, "Catcher in the Rye." There was a, a book that came out that was kind of a continuation of [inaudible], you know, depending on how you want to phrase it, common parody about, parody of "Catcher in the Rye." J.D. Salinger's, and now that he died, his estate, got an injunction against publication of that book at the district court level under very straightforward analysis. You go and you show you've got a copyright. It seems to be likely that this person's infringing your copyright. Then the injunction was almost automatic. The irreparable harm part of the injunction relief was just assumed. If you showed you were going to lose your intellectual property rights if this came out, you could stop publication. That was an exception to the, the general rule that you cannot get injunctions against publication under the First Amendment. This was an exception. The Second Circuit reversed that and sent it back to the district court, and said, we're basically no longer going to say that irreparable harm necessarily flows from the showing of likelihood of success that you're going to be able to show copyright infringement. You're going to have to show something more in order to get that injunction when First Amendment rights are at stake. And I think that case may shift the balance back a little bit. It'll be used, it, there's a lot of litigation's going to have to gone on about the application of that new rule, but I think it's pretty persuasive, and it'll probably get applied outside of the Second Circuit, and Second Circuit is, is the Court of Appeals in New York that's very influential. And if it gets picked up other places and, ultimately, by the Supreme Court, that'll tend to be a bit of a counterbalance to the trend that we've seen of, of companies being able to go to into court and get injunctions of that publication.
>> Well, that means they have to make a better showing. Right?
>> They're going to have to show real harm from it. They're not going to just have this abstract notion of mine intellectual property interests are going to be harmed because you're violating my copyright. You're going to have to, they're going to have to, we don't know exactly yet what they're going to have to [inaudible] -
>> Right.
>> It's going to have to be litigated as to what it is [inaudible] what showing is going to be required, but it's, I think, a step in the right direction of, at least from my perspective, of courts copping to not just automatically say, OK, you can't, there's a, there's a, there's a chance that this is a copyright infringement. That means that you've got to stop publishing. They're going to have to think about it a little bit more, and I think that's a good thing.
>> Paul.
>> We should go to audience questions because we're going to be end of the panel -
>> Yeah.
>> Before we do that.
>> OK.
>> OK. Greg has a question. Greg Zacaras.
>> Greg Zacaras: Quickly. Hi. I don't think there are any journalism principles at stake in the Apple case. I think it does have a lot of lessons for innovation journalism because it shows that it's a difficult activity. If you look at a few analogies, you'll quickly see there are no journalism principles at stake. Let's take, for instance, the referees that are going to be assigned to the NBA Finals. If a week before the referees' names are announced, a beat reporter for the "New York Times" either found this out because they were in a restaurant, and there was a bag there that had the names, or they purchased it, in either way, they're definitely not publishing that information. Similarly, if C.J. Shivers is in Baghdad in the night before a big attack, someone gives him all the plans, he's not publishing that. So I think that one of the things that tech journalists have to understand is when you're at the intersection of commerce and technological change, you have to understand the limits that are set up for good purposes. When I was at the "Wall Street Journal" for 13 years, there was a guy at "Business Week" who would trade off of his own stories, trade stocks. So because, and it was a very good, it was a very good living he was making from it. Now, for the same token, I mean, if we permit the principle that journalists can purchase proprietary information, and then we don't know what they're doing with it outside of journalist activity, what if, indeed, they are doing something with it. What if, for instance, they did give that information to other companies in the normal course of their reporting? So you can see how far out of bat you are. There is no journalistic defense for what happened, and people who get exercised over the free speech principles really misunderstand, a., how free speech actually functions in our society, and, b., what really are the right lessons to learn about what we can and should be reporting about products that are in the pipeline, etc. [applause]
>> Any comments from the panel?
>> Let's go to another question.
>> Let's get -
>> Yeah.
>> Another one. Maline. Maline [inaudible]. I think [inaudible] microphone there, too, and then it will get into the recording as well.
>> Maline: I want to shift this from technological innovation to scientific advances, and I want to bring on the stage the Gulf Oil Bill. That, in fact, a lot of stuff was going on in the name of science, and the, the things going on with BP and Deep Water having particular rights to their own information and [inaudible] taking advantage that we find now that it was kind of an empty shell, and there [inaudible] and stuff. And so, I'm just wondering on much more important issues that are really material to the collective [inaudible] and have effect on far more than a bunch of people. What, what, what are the issues here and, and why is there not discussion about this [inaudible] or should there be?
>> Well, it just [inaudible]. Couple [inaudible]. You, you, as always, put your finger on a really fascinating topic. The only quibble I would have is the issues around the, the Deep Water Horizon failures, that is a systemic technological failure. There are no issues of science there. The science folks are actually the white hats in this, putting up their sensors and tracking the oil spill. There is, just to couple with, there is a fascinating journalistic story to be told about how BP was compelled by one individual to make that live video feed of the oil flow public. Very elegant work around a contractual obligation, and I won't destroy the suspense. You can all find out for your, for yourselves. But you're absolutely right. There are deeper stories to be told about the collective good on that, and no, it just is, small wish picking up on Greg's comment. It would be nice if journalists would spend more time digging into the deep story behind some of the big science issues and less leaking pre-announcements of new computers. One in particular that I think is a real, really important issue, I'm looking a lot at climate change issues lately, and what I've discovered in the first-person sense is what everybody knows is ever since the last blow up around climate [inaudible] that climatologists are being very, very conservative in their public statements about the change, and in private are being very, very honest that everything is changing more quickly. So the net effect or that chilling effect is that the public is being fed something that is causing people to think that maybe climate change isn't happening as quickly. You know, so there's a lot to be explored here.
>> Just very, very briefly on that point, that, that change in how climatologists are, are speaking out publicly is the result of their mistaken self-censorship of in, information that didn't necessarily support their conclusion that climate change is happening rather quickly and so that just an example of where censorship can backfire. And, that was in the case of internal censorship where, where they, you know, we're afraid that if they gave the other side any ammunition it would be used -
>> You're, you're thinking specifically about the leak of the information -
>> Yeah.
>> Yup. This is broader than that. [crosstalk] That that was a, but there's a broader, chilling by society at large. This isn't evil corporate interests. This is, you know, angry citizens -
>> Although if you, if you were to center for the last few years in climate, in, in terms of climate change, you were the one who was [inaudible] by your peers, and that now maybe [inaudible] sort of a turnabout.
>> I, I would point out that, unfortunately, it undercut my whole argument because, of course, it was hackers that brought all this to life. Right. Those, whoever in the Ukraine -
>> Right.
>> [inaudible] that stuff up. So, I guess hackers do have their uses.
>> Thank you. [laughter]
>> Should I admit that?
>> It's on the, it's on video so.
>> Oh, my God. [laughter]
>> We have Eric Melgrin has a question. Wait for the mic, Eric.
^M00:11:02
[ Pause ]
^M00:11:08
>> Eric Melgrin: You mention who's the journalist now [inaudible] at this moment, but I also it, I would like to know, do you think that journalism is [inaudible] should have special privileges apart from the general public in these instances?
>> You're asking me?
>> Eric Melgrin: No. I'm asking the whole panel -
>> Well -
>> Eric Melgrin: Because -
>> Yes. Yes.
>> Eric Melgrin: [crosstalk] I was wondering, what's happened to the idea of equality towards the law if you have a privilege good [inaudible]. [Inaudible] privileged information and then are asked to publish it some or it, that you [inaudible] and not publish it some?
>> I, I think it's fundamental to our system in the United States, certainly, and it's that journalists do have special privileges because an uninformed population cannot make good decisions in electoral issues. That's part of my point. Of course, Apple not exactly affecting the electoral body of the United States, [crosstalk] but, but I, I would, in fact, I think, yes, journalists should have special protections so they can go about their job which is so important to a democratic system.
>> Modern technology has brought us to a point where the average individual now has a worldwide platform to express information that may be a very important, very sensitive, very relevant in the public interest, and the, the test that we've looked to hasn't been one of whether you're a journalist or you went to journalism school or some kind of credentialing or something like that, but really a functional test of whether the, the reasoning and the intent and the practice of the person in this particular instance of information dissemination was for the purpose of, of giving the public information. And if, and, and our position is if you're in the business of, if you're communicating for the purpose of giving the public information, then you're going to be entitled to First Amendment protections for that, and, and not have it be contingent on having a degree or something like that. I think we're well beyond that in terms of what the technology allows, and I think we're well beyond that in terms of what is sort of historically demonstrated as valuable info, as, as the source of valuable information for the public to make decisions whether it be about elections or about oil spills or about climate change or any of those important issues, including the G4.
>> It's interesting. The First Amendment has separate protections for freedom of the press and freedom of speech.
>> That's right.
>> But, but for the most part, the courts have not focused on the freedom of the press part of that. They've not, they've actually, for the most part, said media companies, media companies don't have special protections, which is kind of interesting in light of that freedom of the press clause that's sitting there. They've basically all put it all under freedom of speech so that if you're engaged in what is recognized as freedom of speech activity in newsgathering and reporting is recognized as freedom of speech, then you have certain protections because of the reasons articulated. It's fundamental to our system. I, there's a part of me that says that down the road, we're going to be looking at cases raising the question of whether there ought to be, whether the courts ought to rethink the kind of the ignoring of the freedom of press clause and the focus is solely on the freedom of speech clause. I'm not necessarily sure my, in my mind how that'll come out or whether it's a good thing or bad thing, but I can see it kind of coming down the road as more traditional media may be wanting to try to protect their historic interests by saying we're entitled to certain protections of the press that maybe others don't get, and that will lead us down the road in trying to decision who is a journalist that I think is a very, is a road that really courts, if they can avoid it, should not go down because it's really hard for a court to answer.
>> I, I think we have time for one last question. [inaudible] Wait for the microphone please.
>> [inaudible] I, I had a question because we are, in, in Mexico, we are -
>> Yeah. I, I think [crosstalk] I guess the question -
>> Ask two question.
>> Yeah.
>> Ask two questions. [crosstalk]
>> So you go first, and then we take him, and then we take off -
>> Because in, in Mexico we are very concerned about the [inaudible] Trade Agreement, and I want to know the, the opinion of the, especially for -
>> So, which, which agreement was this?
>> [Inaudible] -
>> Oh. Alright.
>> Trade Agreement. Yeah. E, especially the, the, the opinion of Mr. [inaudible] and, and Lady Jenny.
>> OK. Let's go to the next question, and then we take the officers.
^M00:15:26
[ Pause ]
^M00:15:32
>> I really wonder about the Gizmodo case because it seems to be running a risk of establishing some really bad press of the, if this law gets pushed, and the question that comes to mind is the, let's do a time warp and say what would be left in the bar was the CV of the Pentagon Papers. I think there's no question that journalism should have access to that and provide it to the public with no restrictions, but when we get a bunch of juveniles basically grandstanding to get to page hits of, you know, what difference does journalism and journalists as a group have to the rights of property of others. Because I think it, we're called upon to discriminate between that which is trivial and that which is really significant, and I think Gizmodo is very [inaudible] future on with that.
>> OK. Somebody want to take this [inaudible].
>> I'll, I'll take the active question. So, am I counterfeiting trade agreement, it's, it's been a treaty about [inaudible], about enforcing copyright interests that was negotiated in secret. Drafts of the treaty have been leaked by people who are basically whistleblowers and activists who have gotten a hold of it, and, you know, there's a situation where some light of day on what was being negotiated in [inaudible] has been really beneficial for the public to understand what it is that the copyright industry has been pushing for overseas, one of the most notable things being three strikes. In other words, you're found violating somebody's copyright rights three times, you don't get to use the Internet anymore. So the reason why we understand that this is, you know, was part of the, of the negotiations and proposal and act in the first place was because people leaked the information and other people published the information. Now, on the question of what is important information to publish, I always find it interesting that people feel like data that could put the nation at risk according to the President at the time is clearly OK to publish without any restriction, but information that might mean that maybe Apple sells a few less iPhones is somehow more precious, and I think the, one of the reasons why the First Amendment doesn't make this distinction is because we can't make this distinction. Reasonable people can, can differ, but in my mind, I would think that people would feel more weightily the nation security interests and think more carefully about a Pentagon Papers case than a case where some dude left a phone in the bar. So -
>> [inaudible] On the actor point, you follow that treaty position?
>> Well, as best one can on the outside looking in -
>> It is [crosstalk] after all.
>> [crosstalk] The documents.
>> Yeah. I don't really comment anything because [crosstalk] I had been involved as, as, if you look at my bio, with some treaty negotiations, and in fact, there, there oh, always [inaudible]. I, I don't know quite how to answer beyond that because, you know, I can't say -
>> I think that's a no comment. [laughter]
>> Yeah, but a long one, an elliptical one, I tried to do all the things that ellipsis.
>> I just want to underscore. Jennifer made an extraordinarily important point, which is it's a very dangerous slippery slope to head down when you suddenly say, gee, I don't feel very sympathetic to that defendant, or I don't think that what they did was terribly important, and since I was the one who kind of raised that at the start the session, I want to give proper deference to her observation. She, she's absolutely right that, you know, good law can be created by the most odious of, of, of defendants, and, you know, sympathy is not a test in court much as there are times when we wish it were.
>> Yeah, and I think it's important to remember the Pentagon Papers were initially published. The Vietnam War was still going on. The Nixon administration made the argument that it would put troops at risk. And I think one of the reasons the initial injunction was issued by the Court of New York was they were just, they would have to [inaudible] the documents, and they were, like, maybe there's something in there that really will put the troops at risk. And, and so, it's easy now looking back with hindsight to say, yeah, we, Pentagon Papers no question. But, you know, 20 years from now, people may look back at the Gizmodo case and say, probably not, but say, you know, no question. So it, it's the, when you look at it with hindsight, it's a little bit different than, than when you're looking at. Now, I would say that, that all these situations, there's two things that come into the fore. What's the public interests in publishing, and what's the harm from if, if there is publication? And if, and the, and if those two issues get aired, then most of the time, the courts are going to come to the right decision. The problem is they don't always get aired.
>> I think there's, you know, if it was a civil case, there would be an amicus brief filed by everybody who deferred buying their iPhone upgrade because [laughter].
>> Rudd. That good.
>> I, I think we maybe at time.
>> Yeah. While we could take, I mean, we're five minutes over time.
>> Why don't we do [crosstalk] take, like, three questions?
>> Yeah, yeah, right [crosstalk]. OK, so we'll do that. So. Let's see. You wanted to make a question and wait for the microphone, please.
>> I think if Apple wants to make more money, they should make AT&T work better on the iPhone. Then that -
>> Or, or switch -
>> Right - [applause]
>> Switch carriers.
>> Or jailbreak it and switch to T-Mobile. I mean, that's the biggest problem. Why am I not buying a new iPhone, it's because AT&T doesn't work on it. It's a great device, but it's a crappy phone.
>> My name [inaudible]. I'm from Pakistan. On, on the discussion that I've been hearing from fan mail. Makes me wonder because back in my country, we are allowed to tear our politicians apart to do whatever we want to do as far as if it's about politics, but then it comes to company, we are, we are, we are asked by media organizations not to go there, and we are allowed to report on the company, on private companies, but the reports have to be positive. There's always a special [inaudible] editor with the, with the magazine so there's a pressure that we must publish private company's reports, but then these reports have to be positive. We can't really critically examine even the balance sheets. So even that if I have some information about some multi-national company doing something wrong, there's no way I can get away by publishing it in my paper and without inviting any trouble.
>> Any, any additional question to? You know. OK.
>> So that ends [inaudible].
>> No, well [crosstalk]. Just anything.
>> I have a question. Maybe, maybe it's on the same lines because [inaudible] Apple being, I think, the second largest company in the U.S. [inaudible] Is that true?
>> They just passed Microsoft [crosstalk] on the market.
>> So maybe there are some of the same issues actually that on a more subtle scale is, is it completely out of the, the question that the Gizmodo-iPhone was placed rather than lost?
>> I, let me offer you my opinion. Apple would never be that stupid. That would be a nightmare of, of lawsuits. You just, just no way. No one's that dumb.
>> If you're going to leak, nobody, if we, a lot of us have knocked this question around. My, I, I come to the same view a slightly different way of getting there. If you're going to leak something, if you're going to arrange to leak, you're probably not going to leave it in a bar and hope that somebody without the journ, if you had a journalist across the table, OK, then I get it, right. But you're hoping that somebody finds it, and then starts calling media outlets and saying do you want to buy this phone for $5,000 or, you know, will you take it off my hands. It's probably not, if Apple was going to do it deliberately, it wouldn't be the way they'd probably go about doing it.
>> [inaudible] Did anybody look into the bar story, though? Because we just bought the story, right.
>> Well, the, the guy who sold the phone's been identified. He's been questioned and searched by law enforcement. He's a 21-year-old university student. It seems, what's that? [inaudible] Well, no, it just, it just seems there's so much detail that we now know that it seems unlikely that all that's been made up.
>> And media organizations, including my own, have been facing this story down, and we were the first to identify one of the, one of the people who shopped the phone around to other media organizations. It was basically a bunch of students from University of Santa Barbara who knew each other that moved up here. So, and so, I, I agree with Roger. I mean, we, we know enough of the pieces now that it's unlikely that what you suggest, however entertaining, is true. [laughter]
>> What? Any comment on the international issue because we've so far only talked to U.S. and First Amendment here, but it is -
>> Well, I'd say just on the, you know, on the international issue it's one of the reasons why I think we have to be grateful for the Internet because it does provide an outlet for people in countries where they don't have an outlet or where there's some sort of control for them to speak, and it does provide a resource for people in those same countries to get information that might otherwise be unavailable. I'm really curious about what the coverage of BP looks like inside Pakistan.
>> I can also, just to put things in perspective, when, when, in some countries journalists can be threatened, they can be imprisoned and worse. It's, these are, this is really journalistic the front lines. It's, it's almost silly to, to spend so much time worrying about whether Gizmodo is a news organization or not when there are other broader issues, but, but our mandate for this panel was, was more narrow, and we weren't trying to tackle everything. Yeah.
>> I mean, I've spent most of 2004 in Kazakhstan setting up a center to defend media who were under attack there as in most of the former Soviet Union, which is kind of all, all the governments there are trying to move away from the press reading that came out after the fall of the Soviet Union. What we saw, what, that was really discouraging was not just that there was a lot of pressure on the, on the editors to not publish things because they knew that they faced legal ramifications, it was also that there were a dearth of other ways of getting the media out because the government controlled all the ISP's, they could shut down access to websites. They would, you know, and they were kind of shameless about doing it, and it sounds like, I, I, I'd be curious to know in Pakistan, for example, are, are the editors concerned more because they don't want to irritate interests that might want to, they want to sell advertising to, or are they concerned about getting sued because they're afraid that a corporation goes to court, and it's likely that the judges are going to side with the corporations as opposed to -
>> [Inaudible] Free advertising.
>> [Inaudible] It's, it's, it's both.
>> It's not free advertising [crosstalk] because they would [inaudible] -
>> Because it's, it's a bit of both.
>> OK.
>> What? OK. I think we have to round off now because the next web shop start in 15 minutes. Thank you so much. It's been an [applause] absolute pleasure to work with [inaudible].
[ Music ]